CONTRACT DESIGN IN COMPARATIVE PERSPECTIVE: REFLEXIONS ON THE RELATIONSHIP BETWEEN LEGAL TYPIFICATION AND CONTRACTUAL INNOVATION

Authors

  • Mariana Pargendler FGV Direito SP

DOI:

https://doi.org/10.5380/rfdufpr.v61i1.44079

Keywords:

Contract design. Contract types. Common law. Economic analysis.

Abstract

The differences in the style of contracts used in civil law and common law systems are well known. Traditionally, Anglo-Saxon agreements are longer, as well as more tailored and detailed, than those emerging from the civil-law tradition. However, the existing literature fails to provide a satisfactory explanation for this phenomenon. This article examines how the prominent role of contract types in the civil law tradition, and their lesser role in common law systems, affects the patterns of contract design observed in business practice. From a positive perspective, the Anglo-Saxon origin of a significant number of atypical contracts – such as the so-called “-ing” contracts (leasing, franchising, engineering, among others – suggests that the legal tradition may play an important role in shaping contract design. From a normative perspective, there is a tradeoff between a reduction in the transaction costs brought about by legislative contract types, on the one hand, and the disincentives created to innovation in contractual forms, on the other. Finally, the article concludes by reflecting on the future of drafting techniques in an era of globalization and on the possible role of the state in inducing contract innovation in the civil law tradition.

Author Biography

Mariana Pargendler, FGV Direito SP

Professora em tempo integral da Graduação em Direito, do Mestrado Acadêmico e do Mestrado Profissional em Direito da Escola de Direito de São Paulo da Fundação Getulio Vargas (FGV Direito SP. São Paulo, SP, Brasil), onde é diretora do Núcleo de Direito, Economia e Governança (NDEG). Global Associate Professor of Law na New York University (NYU) School of Law. Professora Visitante da Stanford Law School (2014-2015). Doutora (J.S.D.) e Mestre (LL.M.) em Direito pela Yale Law School. Doutora e Bacharel em Direito pela Universidade Federal do Rio Grande do Sul. E-mail: mariana.pargendler@fgv.br

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Published

2016-04-29

How to Cite

Pargendler, M. (2016). CONTRACT DESIGN IN COMPARATIVE PERSPECTIVE: REFLEXIONS ON THE RELATIONSHIP BETWEEN LEGAL TYPIFICATION AND CONTRACTUAL INNOVATION. Revista Da Faculdade De Direito UFPR, 61(1), 219 – 245. https://doi.org/10.5380/rfdufpr.v61i1.44079

Issue

Vol. 61 No. 1 (2016)

Section

Artigos

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